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Joseph Scott Ziehlke v. George Valverde

January 25, 2011

JOSEPH SCOTT ZIEHLKE, PLAINTIFF AND APPELLANT,
v.
GEORGE VALVERDE, AS DIRECTOR, ETC., DEFENDANT AND RESPONDENT.



Super. Ct. No. CV35599 APPEAL from a judgment of the Superior Court of Calaveras County, John E. Martin, Judge. Affirmed.

The opinion of the court was delivered by: Scotland , J.*

CERTIFIED FOR PUBLICATION

Lose your sobriety, lose your driver's license, lose your job. That is one of the serious consequences for commercial motor vehicle operators who drive under the influence of alcohol.

Vehicle Code section 15300 prohibits a person from operating a commercial motor vehicle for a period of one year if the person is "convicted" of driving any vehicle while having 0.08 percent or more of alcohol in his or her blood (Veh. Code, § 23152, subd. (b)), or driving a commercial vehicle while having a blood-alcohol content of 0.04 percent or more (Veh. Code, § 23152, subd. (d)), or committing other driving offenses listed in the statute. (Veh. Code, §§ 15300, subds. (a)(1)-(10); further section references are to the Vehicle Code unless otherwise specified.) A "conviction" includes "a determination" by "an authorized administrative tribunal" that "a person has violated or failed to comply with the law . . . ." (§ 15210, subd. (d).)

When Joseph Scott Ziehlke was arrested for driving his pickup truck while having a blood-alcohol content of 0.16 percent, twice the legal limit, the arresting officer confiscated Ziehlke's Class B commercial driver's license. The officer gave Ziehlke a Department of Motor Vehicles (DMV) document entitled, "ADMINISTRATIVE PER SE SUSPENSION/REVOCATION ORDER AND TEMPORARY DRIVER LICENSE," which notified Ziehlke that his "privilege to operate a motor vehicle will be suspended or revoked effective 30 days from the [date of arrest]" and that he had 10 days to request a DMV administrative hearing to show that suspension or revocation of his driver's license was not justified. The document further notified Ziehlke that he would be disqualified from operating a commercial vehicle if the DMV found that he "held a commercial driver license [while] driving any vehicle [not just a commercial vehicle] when [he] had a 0.08% BAC [blood-alcohol content]."

During the administrative hearing requested by him, Ziehlke admitted drinking "a few beers" and "some Peppermint Schnapps" prior to the driving that led to his arrest. Based upon evidence that Ziehlke was found in his vehicle stopped in a roadway, evidence of his symptoms of intoxication, including bloodshot and watery eyes, odor of alcohol, unsteady gait, loss of balance, and slurred speech, and evidence that his blood-alcohol content was 0.16 percent, the DMV hearing officer found (1) the arresting officer had reasonable cause to believe that Ziehlke was driving a motor vehicle while under the influence of alcohol; (2) Ziehlke was lawfully arrested for driving in violation of section 23152; and (3) Ziehlke was driving a motor vehicle when he had a blood-alcohol content of 0.08 percent or more. (See §§ 13557, subd. (b)(2); 13558, subd. (c)(2).)

Accordingly, the DMV "re-imposed" the suspension of Ziehlke's driving privilege and disqualified him from operating a commercial vehicle for a period of one year. (§ 15300, subd. (a)(1).)

The superior court denied Ziehlke's petition for writ of mandate challenging the suspension of his commercial driver's license.

On appeal, Ziehlke claims the DMV administrative finding that he drove a motor vehicle while having a blood-alcohol content over 0.08 percent "does not satisfy due process so as to be deemed a 'conviction' under" section 15300, subdivision (a)(1). According to Ziehlke, the "Admin Per Se hearing process fails due process in order to equate as a 'conviction'" because the hearing officer "is not required to be qualified for the job" and the burden of proof "is only by a 'preponderance of the evidence.'" In his view, "the rationalization of the language 'administrative tribunal' [§ 15210, subd. (d)] has to be to tribunals such as the military which comply with basic notions of due process . . . ." The contention fails.

As we will explain, because the DMV administrative hearing is not for the purpose of imposing criminal sanctions, "relaxed" standards of due process apply. (MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 155, 159.) Proof beyond a reasonable doubt is not required, and we presume that the person conducting the hearing has the education, experience, knowledge, and abilities required by California State Personnel Board specifications to be a DMV hearing officer.

Accordingly, we affirm the judgment against Ziehlke.

DISCUSSION

I

Section 13353.2 directs DMV to suspend the driving privilege of a person who "was driving a motor vehicle when the person had 0.08 percent or more, by weight, of alcohol in his or her blood" in violation of section ...


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